Case Note & Summary
The matter before the High Court of Karnataka was a criminal revision petition filed under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (and Section 438 read with Section 442 of the Bharatiya Nagarik Suraksha Sanhita, 2023) against concurrent findings of conviction under Section 138 of the Negotiable Instruments Act, 1881. The petitioner was the accused in a cheque dishonour case and sought to set aside the judgment of the Trial Court dated 05.08.2023 in C.C.No.563/2019 and the judgment of the Appellate Court dated 01.08.2025 in Crl.A.No.163/2023. The complainant alleged that the accused approached him for financial assistance to meet urgent necessities and family benefits, received Rs.1,50,000 on 17.07.2017, and issued a cheque dated 06.09.2017. When presented, the cheque was returned with the endorsement 'funds insufficient' on 17.10.2017. A legal notice was issued on 26.10.2017 and served on the accused on 27.10.2017, but the accused did not comply with the demand. The complaint was filed, cognizance was taken, and the accused pleaded not guilty. In the trial, the complainant examined himself as PW1 and marked Ex.P1 to P7. The accused examined herself as DW1 and marked Ex.D1 to D11. The Trial Court rejected the defence of a chit transaction and cheque issued in favour of Smt. Anuradha, concluded that the complainant made out his case, and convicted and sentenced the accused. The Appellate Court re-appreciated the evidence, relied on the presumption in favour of the cheque holder, and dismissed the appeal. In revision, the petitioner argued that the defence evidence by affidavit filed by DW1 was contrary to the dictum of this Court and the Apex Court, particularly under Section 145(1) of the Evidence Act/N.I. Act, and therefore both judgments should be set aside and the matter remanded. The petitioner also contended that both courts failed to scrutinise Ex.D1 to D11 and blindly accepted the complainant's case. The respondent argued that the accused herself tendered evidence by affidavit and was cross-examined, and now cannot approbate and reprobate. The defence of chit transaction was not substantiated as Smt. Anuradha was not examined; only copies of private complaints and the affidavit/cross-examination were produced. The High Court framed the point whether the courts below committed an error in convicting the accused under Section 138 of the N.I. Act. On the issue of validity of defence affidavit, the Court discussed Section 145 of the N.I. Act, referring to Afzal Pasha v. Mohamed Ameerjan (ILR 2016 Karnataka 4145), Vaibhav Khare v. Kamal Kishore Arya (MANU/MP/1067/2020), and Indian Bank Association v. Union of India (2014) 5 SCC 590. These precedents indicated that Section 145 is purely procedural, does not affect the right to cross-examine, enables defence evidence to be led by affidavits, and affidavit evidence can be considered examination-in-chief in summary trials. The judgment text is truncated before the final order, and therefore the final decision of the High Court is not available.
Headnote
A) Criminal Procedure - Evidence by Affidavit in Summary Trials - Section 145 of Negotiable Instruments Act, 1881 - The Negotiable Instruments Act, 1881, Section 145 - The revision petitioner argued that the accused's evidence by affidavit was impermissible and the judgments must be set aside, relying on Mandvi Cooperative Bank Ltd and Indian Bank Association. The High Court referred to Afzal Pasha v. Mohamed Ameerjan, Vaibhav Khare v. Kamal Kishore Arya and Indian Bank Association v. Union of India to hold that Section 145 is purely procedural, enables defence evidence by affidavits, and affidavit evidence can be considered examination-in-chief. Held that the defence affidavit in a Section 138 NI Act summary trial was valid and the accused who voluntarily filed it and subjected to cross-examination could not challenge its admissibility (Paras 7-13).
Issue of Consideration
Whether the Trial Court and the Appellate Court committed an error in convicting the accused for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 and whether it requires interference of the High Court.
Final Decision
Not mentioned (judgment text truncated before final order)
Law Points
- Section 145 of Negotiable Instruments Act
- 1881 is procedural and enables defence evidence by affidavits
- Summary trial procedure under Section 138 NI Act
- Evidence on affidavit can be considered examination-in-chief
- Accused cannot approbate and reprobate after subjecting to cross-examination
- Presumption arises in favour of cheque holder under NI Act
